JUDGMENT Hon’ble Arvind Kumar Tripathi-II, J.—Heard learned counsel for the appellant, learned counsel for the respondent and perused the record. 2. The instant first appeal from order has been filed under Section 37 of Arbitration and Conciliation Act, 1996 being aggrieved from the judgment and order dated 20.9.2005 passed by the then District Judge, Sultantpur in Misc. Case No. 200/05, under Section 34(2) of the Arbitration and Conciliation Act, 1996, inter alia dismissing the appellant’s application for setting aside award dated 22.5.2002. 3. A project was granted by U.P. Government through Chief Engineer for rehabilitation and improvement of Faizabad-Allahabad Road relating to Kms. 127.4 to 140 M/s Tantia Constructions Company (hereinafter called as opposite party) alongwith other participants participated in tender and its tender was accepted. Another agreement between the parties was in writing on 30.8.1993 through letter No. 3SE/64/CP-8/WBP SE 93 and it was agreed upon that the work will start since 30.8.1993 and will be completed upto 29.8.1996. When the work was not performed within stipulated period the opposite party applied for extension which was allowed without any penalty and the Department allowed the opposite party to complete the work by 24.9.1997. After completion of work, the opposite party applied for extra payment to the authority concerned by sending claim notice on 17.11.1997, which was rejected by the concerned authority. After that the matter was referred to Arbitral Tribunal to resolve the dispute regarding claimed amount of payment. The opposite party named one Arbitrator on its behalf and another Arbitrator was appointed by the Authority concerned. Third Arbitrator was also appointed who became Chairman of Arbitral Tribunal. All the Arbitrators were retired Engineers and specialist in their filed. After several sittings and after considering respective submission and document submitted by the parties, the Arbitral Tribunal gave the award by awarding a total amount of Rs. 5,71,44,648/-(Five crore seventy one lac and six hundred forty eight) in favour of opposite party including cost and interest. 4. Feeling aggrieved from the Award an application under Section 34(2) was filed for quashing the award. 5. Learned District Judge after hearing the parties and going through the award rejected the application. Feeling aggrieved this first appeal from order has been filed. 6. 4. Feeling aggrieved from the Award an application under Section 34(2) was filed for quashing the award. 5. Learned District Judge after hearing the parties and going through the award rejected the application. Feeling aggrieved this first appeal from order has been filed. 6. Learned counsel for the applicant assailed the impugned Award of the Arbitral Tribunal on the ground that; (a) Arbitrators have not followed the prescribed procedure; (b) Award is against the Public Policy; (c) Award is against terms of contract and no reason has been assigned; (d) Interest awarded is arbitrary ; and (e) Undue costs has been imposed upon the applicant.” 7. It has been argued by learned counsel for the appellant that learned Court below has ignored the fact that all provisions whether statutory or agreed by all parties to the arbitration agreement were conclusive and obligatory against the arbitrators for the purpose of conduct of arbitration proceedings. The Court is not vested with any judicial discretion as is not available in the matter of grounds set out in Section 34(2)(b) clauses (i),(ii) or in clause (a). The Court below has failed to appreciate the fact that the conduct of arbitration proceedings is concerned, it is determining factor for arbitrator’s jurisdiction and any contravention thereof amounts to improper exercise of jurisdiction by him. Court below also vitiated the judgment that Arbitral Tribunal was not competent to either override or supersede any provisions of the contract between the parties as such the award concerning claim for compensation either due to escalation in price on account of delay on extension of period of completion of work was not intertainable at all. Learned Court below also omitted to consider that contract was with the Government, consequently for any personal assurance or observations made by an officer not authorised either by General or special order could not be binding on the Government. Learned Court below erred to observe that the contractor opposite party was entitled to reasonable escalation in price on account of variations, subsequent to the period of contract although the contractor was debarred to claim the same under the contract. Learned Court below also erred very badly to misinterpret the notion of public policy. Learned Court below failed to appreciate that the award of interest on the principals sum was not within the jurisdiction of Arbitral Tribunal. 8. Learned Court below also erred very badly to misinterpret the notion of public policy. Learned Court below failed to appreciate that the award of interest on the principals sum was not within the jurisdiction of Arbitral Tribunal. 8. It was submitted by counsel for respondent that the grounds of challenge raised by the petitioner, are not of the nature that are relatable to those enumerated Section 34(2) of the Act. By operation of Section 34(1), an award can be set aside only if the appellant is able to establish by material on record that the award is of a nature that falls in one of the enumerated categories of Section 34(2). 9. The grounds of challenge that have been provided under Section 34(2)(a) are : “(i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; 10. To the above grounds there are two more grounds set out in Section 34(2)(b) of the Act, which are: (i) the subject-matter of the dispute is no capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral generality of sub-caluse (ii), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 8 1 award is in conflict with the public policy of India. 11. Thus, in terms of Section 34(1), an award can be set aside if and only if the grounds of challenge are any of the grounds enumerated above, and if the Appellant has been able to discharge the burden placed upon them by law to establish that their case falls in any or more of the aforestated categories. 12. Before, adverting to the grounds of challenge raised by the Appellant, it is necessary to state that the arbitral tribunal established as per Clause 67 of the contract between the parties comprised of three expert members. One expert member was nominated by the appellant and one expert member was nominated by the appellant and one expert member was nominated by the Respondent, and the third member was also an expert nominated by the Indian Road Congress. Thus, in respect of all the factual pleas which are in respect of price escalation etc, the same had been decided by the expert body, i.e. arbitral tribunal and it cannot be said that the arguments of the appellant had not been considered, or that the view taken was an arbitrary one. The decision is that of experts well versed with pricing and other issues arising out of road construction contrast. 13. In J.G. Engineers P Limited v. Union of India, (2011) 5 SCC 758 , it was held that Section 28(3) of the Act provides that in all cases the arbitral tribunal shall decide in accordance with the terms of the contract and shall also take into account the usages of the trade applicable to the transaction. Sub-section (1) of Section 28 provides that the arbitral tribunal shall decide the disputes submitted to arbitration in accordance with the substantive law for the time being in force in India. Sub-section (1) of Section 28 provides that the arbitral tribunal shall decide the disputes submitted to arbitration in accordance with the substantive law for the time being in force in India. The Appellant has not brought any argument by which it can be shown that the tribunal has disregarded the contract. In fact, the contract itself made reference to prevailing rates and to a certain established parameter of determining the costs; and once that has been resorted to, the Appellant has no legs to contend that the contract has been disregard. 14. Interpreting the said provisions, i.e. Section 28, the Hon’ble Supreme Court in Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd., 2003 (5) SCC 705 , held that a Court can set aside an award under Section 34(2)(b)(ii) of the Act, as being in conflict with the public policy of India, if it is (a) contrary to the fundamental policy of India Law; or (b) contrary to the interests of India; or (c) contrary to justice or morality; or (d) patently illegal. Apex Court has observed that to hold an award to be opposed to public policy, the patent illegality should go to the very root of the matter and not a trivial illegality. It is also observed that an award could be set aside if it is so unfair and unreasonable that it shocks the conscience of the Court, as then it would be opposed to public policy. Evidently, the instant case, does not fall in the any of the aforesaid categories. 15. We now deal with grounds of Challenge argued by the appellant. (a) Arbitrators have not followed prescribed procedure.—Subject to Arbitration and Conciliation Act, 1996, parties are free to agree on the procedure, as has been mentioned in Section 19 of the Act. Section 19. Determination of rules of procedure.— (1) The arbitral tribunal shall not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872 (2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings. (3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate. (3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate. (4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence. Sub-clause (2) clearly makes out that arbitration proceeding shall be conducted in the manner set out by the parties, falling that sub-clause (3) specifics that an arbitral tribunal may form its own procedure. As observed by the learned Judge Sultanpur that it is undisputed fact that in all 17 sittings, officers of the U.P. Government participated and not even single proceeding was challenged by them. Therefore, it is not open to appellants to challenge the proceeding now, the appellants are estopped from preferring an appeal now. Similarly the appellants also alleged that a fee charged by arbitrator was excessive and the consent for the same was given. The respondents have brought this contention in their counter that appellants agreed to pay the full amount in 10th meeting and the appellants had no objection in making the payment. Regarding the constitution of Arbitral Tribunal, the appellants appointed one of the arbitrators and the constitution was never challenged before the Arbitral Tribunal. (b) and (c) Arbitration award is against public policy and against the term of contract: Contention was raised that all Arbitrators were Engineers hence a local inspection could have been made and the Arbitrators failed to make any description about the award separately, also the arbitrator failed to take into the account the rates that was quoted by the Junior Engineer. The District Judge, Sultantpur considered the above fact and rightly concluded that the award is not against the public policy or the terms of contract. Similarly the Hon’ble Supreme Court if India in the case of Ravindra Kumar Gupta & Company v. Union of India, (2010) 1 SCC 409 , wherein the Hon’ble Apex Court has held that the arbitrator is the final arbiter for the dispute between the parties and it is not open to challenge the award on the ground that the arbitrator has drawn conclusion or has failed to appreciate the facts. (d) Interest awarded is arbitrary: Appellants asserted that there was no provision under the contract for the award of interest. (d) Interest awarded is arbitrary: Appellants asserted that there was no provision under the contract for the award of interest. The Arbitration and Conciliation Act, 1996, provides the provision for award of interest under Section 31, sub clause (7) Section 31. Form and contents of arbitral award.— (7) (a) Unless otherwise agreed by the parties, where and in so far as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made. (b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen per centum per annum from the date of the award to the date of payment. Under the term of contract, award of interest was not prohibited, therefore, Section 31 becomes operative as a general principle therefore the District Judge, Sultanpur rightly observed that Tribunal may award interest at such rate as it deem reasonable. Also the Judge has observed that the interest awarded should have been higher than 14%. (e) Undue cost has been imposed upon the Applicant: the Arbitral Tribunal is empowered to award cost under Section 31 sub-clause 8 of the Arbitration and Conciliation Act, 1996 which is as follows : (8) Unless otherwise agreed by the parties,- (a) the costs of an arbitration shall be fixed by the arbitral tribunal; (b) the arbitral tribunal shall specify- (i) the party entitled to costs, (ii) the party who shall pay the costs, (iii) the amount of costs or methods of determining that amount, and (iv) the manner in which the costs shall be paid. 16. In Rashritya Ispat Nigam Ltd. v. Dewan Chand, (2012) 5 SCC 306 (paragraph 43-45), that the interpretation or the view expounded by the arbitrator is not liable to be replaced by the view of the Court. Proceedings under Sections 34 and 37 are not in the nature of second appeal, and all that is permissible for the Court is to examine whether the ground of challenge falls in any of the grounds enumerated in Section 34 of the Act. 17. Proceedings under Sections 34 and 37 are not in the nature of second appeal, and all that is permissible for the Court is to examine whether the ground of challenge falls in any of the grounds enumerated in Section 34 of the Act. 17. There was no incapacity on the part of the claimant respondent to approach to the Arbitral Tribunal for settlement of dispute and making Award in his favour, and as such, the Ground No. 2 (a)(I) of Section 34 of the Act was not available to the appellants. 18. Further, the Arbitration Agreement having been entered into between the parties in accordance with law, the said Agreement is valid under law, and as such, the Ground No. 2 (a)(II) of Section 34 of the Act is also not available to the appellants for challenging the said Award. 19. The Arbitral Tribunal was appointed by the parties in accordance with the terms of the Arbitration Agreement by proper notice to the appellants and further the Arbitral proceedings were conducted by the Arbitral Tribunal in accordance with law after proper notice to the parties including the appellants and as such, the Ground No. 3 (a)(iii) of Section 34 of the Act is also not available to the appellants to challenge the Award. 20. The Arbitral Tribunal on the basis of the pleadings of the parties had framed the points in dispute which had arisen in terms of the Agreement between the parties, on which issues both the parties had lead the oral and documentary evidences and were given full opportunity of hearing and thereafter the Arbitral Tribunal gave its Award awarding only a sum of Rs. 5,71,44,648/- out of total claim amount of Rs. 16,85,59,343/-. None of the claims made in the said claim petition and award made by the Arbitral Tribunal are beyond the scope of the submissions to the Arbitration, as such, the appellants can also not assail the Award in question under Section 34 (2)(a)(iv) of the Act. 21. The composition of the Arbitral Tribunal and the procedure adopted by the Arbitral Tribunal has not been challenged by the appellant before the Arbitral Tribunal, as such, now it is not open for the appellants to assail the Award under Section 34(2)(a)(v) of the Act. 22. 21. The composition of the Arbitral Tribunal and the procedure adopted by the Arbitral Tribunal has not been challenged by the appellant before the Arbitral Tribunal, as such, now it is not open for the appellants to assail the Award under Section 34(2)(a)(v) of the Act. 22. The manner in which challenge to the arbitrator’s competence can be made is setout in Section 12 and Section 16 of the Act. Admittedly, the Appellant’s had participated in all the proceedings without demur and the grounds of incompetence of the tribunal had been raised for the first time only at the stage of challenge under Section 34 before the District Judge. Thus, also upon application of the principles of estoppel and acquiescence, it is impermissible for the Appellant to impeach the competence of the tribunal at Section 34 stage. 23. Since there was no incapacity of the any of the party to enter into contract, and the same has also not been alleged, that ground under Section 34(2)(b) is unavailable to the appellant. 24. There is nothing on record by which it can be said that the award is in conflict with the public policy of India. The law has been settled by Oil & Natural Gas Corp. v. Saw Pipes Ltd., (2003) 5 SCC 705 , and it is not open for the Appellants to urge that ‘public policy of India’ be treated either as catch-all provision or as an unruly horse which would be available to challenge the award. 25. While Appellant is State of UP, the Respondent submits that the contract related to a commercial work,and thus, the scope of work and Court interference is limited only to patent illegality. There is nothing in this case that shows that there is patent illegality of any sort. 26. In Ravindra Kumar Gupta v. Union of India, 2010 (1) SCC 409 , the Hon’ble Supreme Court has been pleased to hold that “We are of the considered opinion that the High Court committed a serious error in re-appreciating the evidence led by the parties before the arbitrator. This evidence was duly scrutinised and evaluated by the arbitrator. With regard to claim No. 5, the arbitrator has given elaborate reasons. Therefore, finding recorded by the arbitrator cannot said to be either perverse or based on no evidence.” 27. This evidence was duly scrutinised and evaluated by the arbitrator. With regard to claim No. 5, the arbitrator has given elaborate reasons. Therefore, finding recorded by the arbitrator cannot said to be either perverse or based on no evidence.” 27. Thus, it follows that when the arbitrators have considered the material on record and the evidence lead by the parties, and then the award has been passed, it cannot be said that it perverse and liable to be set aside. 28. In State of Rajasthan v. Puri Construction Company Limited. and another, (1994) 6 SCC 485 , this Court observed as follows: “The arbitrator is the final arbiter for the dispute between the parties and it is not open to challenge the award on the ground that the arbitrator has drawn his own conclusion or has failed to appreciate the facts. In Sudarshan Trading Co. v. Government of Kerala, 1989 Ind law SC 463, it has been held by this Court that there is a distinction between disputes as to the jurisdiction of the arbitrator and the disputes as to in what way that jurisdiction should be exercised. There may be a conflict as to the power of the arbitrator to grant a particular remedy. One has to determine the distinction between an error within the jurisdiction and an error in excess of the jurisdiction. Court cannot substitute its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. Whether a particular amount was liable to be paid is a decision within the competency of the arbitrator. By purporting to construe the contract the Court cannot take upon itself the burden of saying that this was contrary to the contract and as such beyond jurisdiction. If on a view taken of a contract, the decision of the arbitrator on certain amounts awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the Court. Where the reasons have been given by the arbitrator in making the award the Court cannot be examine the reasonableness of the reasons. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of evidence. Where the reasons have been given by the arbitrator in making the award the Court cannot be examine the reasonableness of the reasons. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of evidence. The arbitrator is the sole judge of the quality as well as the quality of evidence and it will not be for the Court to take upon itself the task of being a judge on the evidence before the arbitrator. In the case of Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar, 1987(4) SCC 497 , it has been held by this Court that appraisement of evidence by the arbitrator is ordinarily never a matter which the Court questions and considers. It may be possible that on the same evidence the Court may arrive at a different conclusion than the one arrived at by the arbitrator but that by itself is on ground for setting aside the award. It has also been held in the said decision that it is difficult to give an exact definition of the word reasonable. Reason varies in its conclusions according to the idiosyncrasies of the individual and the time and circumstances in which thinks. In cases not covered by authority, the verdict of a jury or the decision of a judge sitting as a jury usually determines what is reasonable in each particular case. The word reasonable has in law prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably knows or ought to know. An arbitrator acting as a judge has to exercise a discretion informed by tradition, methodized by analogy disciplined by system. (28) Yet again in PR Shah, Shares & Stock Broker (P) Ltd. v. BHH Securities Limited, VIII (2011) SLT 15 (paragraph 15), the Hon’ble Supreme Court has been pleased to hold that “a Court does not sit in appeal over the award of an arbitral tribunal by reassessing or re-appreciating evidence.” 29. (28) Yet again in PR Shah, Shares & Stock Broker (P) Ltd. v. BHH Securities Limited, VIII (2011) SLT 15 (paragraph 15), the Hon’ble Supreme Court has been pleased to hold that “a Court does not sit in appeal over the award of an arbitral tribunal by reassessing or re-appreciating evidence.” 29. In fact, this Court has also taken a similar view in Ayodhya Faizabad Vikas Pradhikaran v. Ram Prasad Verma, FAFO No. 391 of 1999 vide judgment and order dated 7.4.2009, wherein this Court has held that “the findings record by the arbitrator and affirmed by the Court below, should not be interfered lightly unless it is demonstrated that the findings recorded are absolutely based on no evidence and, miscarriage of justice has been caused.” 30. Thus, having considered the very same grounds and material that the appellant is raising in this appeal, the arbitrators, as well as the District Judge, Sultanpur has ruled against the Appellant, it does not lie in the mouth of the Appellant to contend that this Court ought to replace the views of the arbitrators with its own view. 31. For reasons as aforestated, the Appeal preferred by the Appellant is liable to be dismissed with costs in favour of the Respondent. Accordingly dismissed. ——————